Applicant v Respondent

2 By reason of s 15AA of the Crimes Act 1914 (Cth) the applicant must show exceptional circumstances before bail can be granted as the offence charged falls within the category of a "terrorism offence".

3 The maximum penalty for the offence charged is 10 years imprisonment. This presumably reflects the fact that the offence charged is one of association only and may not involve actual direct or indirect participation in any terrorist act.

4 In these circumstances it may be that the requirement to establish "exceptional circumstances" has the potential to operate in a harsh manner. Such a requirement is generally imposed only with respect to offences the seriousness of which is reflected by significantly higher penalties than those which attend the offence charged. It is possible that an offence of the kind charged may involve culpability of a wide range of degrees. Nevertheless, this Court is required to implement the law as enacted by Parliament and it is necessary for the applicant to satisfy the threshold requirement of "exceptional circumstances" before the Court turns to other considerations.

5 The concept of exceptional circumstances is necessarily a flexible one but it is clear that it may be constituted by a combination of matters which taken together render the case exceptional.[1]

6 In the present case the applicant seeks to rely either individually or in combination upon the following assertions:

(b) that the circumstances of his remand as an unconvicted prisoner are particularly oppressive and onerous;

(c) that he has strong ties to the jurisdiction, family support and good employment prospects; and

(d) that in realistic terms there is likely to be a delay in the resolution of the proceedings.

7 I shall deal with each of these considerations in turn.

8 The prosecution case is that the applicant and nine co-accused were members of a terrorist organisation based in Melbourne which was committed to a violent form Jihad and was intent on fostering the commission of a terrorist act within Australia. It is said the group was led by one Benbrika, who is charged with the additional offence of directing the activity of a terrorist organisation. Members of the group other than the applicant have also been charged with intentionally making funding available to a terrorist organisation.

9 The applicant was remanded in custody on 8 November 2005 and a committal mention hearing fixed for 31 January 2006. It was ordered that the hand up brief be served by 20 December 2005. That date was subsequently extended to 28 February 2006. Oral evidence was given before me by investigating officers to the effect that the prosecution is "on track" to meet this deadline. It is said this is so despite the potentially voluminous nature of the evidence referred to by Mr Stary.

10 There is some preliminary difficulty in assessing the strength of the Commonwealth case when the material relied upon by the Commonwealth has not yet been finalised to the hand up brief stage.

11 It is apparent, however, that the Commonwealth case against the applicant will in part comprise:

(a) recorded conversations between the applicant and Benbrika;

(b) a record of interview elaborating the applicant's conceptual framework of beliefs with respect to Jihad and terrorist activities;

(c) evidence as to literature, other documents and computer files found at the applicant's house;

(d) evidence as to the extent and pattern of telephone conversations with other alleged members of the group;

(e) the content of some such conversations alleged to reflect group activities;

(f) the activities of other members of the group demonstrating the character of the organisation to which is alleged the applicant belonged.

12 The thrust of the Commonwealth case concerning actual activities of the applicant appears to be simply that the applicant had formally committed himself to the group by swearing an oath of allegiance to Benbrika, had expressed a willingness to serve Benbrika as a member of the group, had contemplated the undertaking of terrorist activities by the group in discussions with Benbrika, and had provided computer assistance to Benbrika.

13 As Mr Stary correctly submits there is apparently no evidence the applicant himself engaged in a series of activities of which there is said to be evidence in respect of other group members. More particularly it is not the Commonwealth case that the applicant has:

(a) contributed funds to a Sandooq (common financial fund);

(b) attended at any of a series of locations for the purposes of training;

(c) been formally designated for a particular role within the group (although it is the Commonwealth case that his expertise with respect to computers was something that gave him a special role within the group);

(d) been involved in the acquisition of any chemicals, chemical apparatus or weapons;

14 It may be observed that to some extent this distinction is implicit in the Commonwealth case in that the applicant has been charged with one offence only whereas his co-accused have been charged with additional offences. Nevertheless, the absence of evidence of active participation in extended activities is a relevant component of an assessment of the strength of the Commonwealth case.

15 The critical question remains, however, not whether the case against the applicant is strong by comparison with the case against other co-accused but whether the case against the applicant can itself be characterised as weak.

16 I am not persuaded that it can be so characterised. It would be inappropriate to purport to comprehensively analyse the case on the basis of the material put before me, but I accept Mr Maidment's submission that as a core element of the case the giving of a pledge of allegiance by the applicant to Benbrika ("the 'Bayat'") which is evidenced by a recorded conversation including a discussion of the principles governing Jihad and the roles available to the applicant in fulfilment of such a pledge, constitutes evidence of the joining of a group. The statements recorded further fall to be assessed in the context of the applicant's explanation of his framework of beliefs contained in his record of interview. In turn this evidence will form part of a broader circumstantial case relating to the activities of the alleged group and its character.

17 This is not to deny that as Mr Stary submitted both the recorded conversation and the record of interview must be considered as wholes and there is room for genuine contention as to their import (noting in passing that the conversation is partly in Arabic). Nor is it to deny that individual elements of the circumstantial evidence upon which the prosecution relies are on the face of it entirely consistent with reasonable explanations consistent with innocence. Nevertheless, viewed as a whole I am not persuaded the case for the prosecution can at this stage fairly be characterised as weak.

18 The applicant is being held together with nine co-accused in unit 1 of the maximum security block at Barwon Prison. The circumstances are summarised in the affidavit of Paul Vincent Delphine sworn 18 January 2006.

"6. I am advised by the General Manager of Barwon Prison and believe that the Applicant's current prison conditions are as follows:

1. That since his reception in Acacia Unit on the 8 November 2005, the Applicant has been accommodated in Unit 1. As from 15 November 2005, he has been out of his cell for about 5 hours per day. . . .
2. During this time he has access to exercise equipment.

1. He has access to a telephone. He is permitted to make 25 personal telephone calls per week and unlimited legal professional calls.
2. He is permitted one non-contact visit of one hour's duration per week.
3. He is permitted contact professional visits.
4. He has access to shared facilities to assist in the preparation of his legal matters including a computer with a CD-Rom drive during his out of cell hours. He is able to make application for any special arrangements he requires to assist him in the preparation of his defence.
5. Nursing staff attend Acacia Unit daily. Medical, dental and psychiatric services are routinely available on a weekly basis. Psychological services are available on an as required basis."

19 As I indicated during the course of the hearing I coincidentally inspected the relevant conditions in December 2005. Representatives of the parties have indicated they have no objection to me taking into account my observations at that time.

20 As a general rule an accused person who enjoys the presumption of innocence but is held in custody pending trial should be kept in conditions which are as humane as are reasonably practicable.

21 In the present case the applicant is held in seriously confined conditions. It can be said that he has access to a variety of facilities within his confined circumstances and is one of a group which appears to be mutually supportive. Nevertheless the basic fact remains that Unit 1 is restricted in space with very little access to the open air and his opportunities for outside contact are materially limited. The fact that Unit 1 and in turn the block which contains it are fully or substantially occupied on an ongoing basis exacerbates these problems. These conditions, which I have personally observed, are not those in which ordinary Australians would expect any member of the public to be held on remand for extended periods of time when charged with no more than membership of an organisation.

22 A matter of particular sensitivity raised by Mr Stary is the question of adequacy of access to legal representatives. Detailed evidence was adduced before me as to difficulties experienced by the applicant's solicitor in obtaining access to him. On the other hand Mr Delphine described efforts that had been made to improve the accommodation for visits to the applicant and further expressed a willingness on the part of Corrections Victoria to respond to further requests for improved conditions. As I indicated during the course of argument it is apparent that the usefulness of computer facilities to the applicant and the efficiency with which conferences with his legal representatives can be conducted will be materially affected by the manner in which the prosecution presents the hand up brief.

23 In my view the conditions in which the applicant is confined are such that if such confinement continued for a protracted period pending trial it might be regarded as constituting exceptional circumstances. It cannot be said, however, that at present the conditions under which Mr Haddara is being held constitute exceptional circumstances.

24 The applicant has lived throughout his life with his parents in Yarraville. I accept that he has strong ties to the jurisdiction and family support. I also accept that he has good employment prospects. None of these matters, however, in themselves or taken with the circumstances of the case as a whole transform it into one of exceptional circumstances.

25 There is contention between the parties as to the extent of delay which is likely to occur in this matter. I accept Mr Stary's submission that there is a potential for substantial delay to occur before his client is brought to trial. Nevertheless, the present state of the proceeding does not enable me to conclude that the delay will be such that taken in conjunction with other circumstances (and in particular those in which the applicant is held in custody), his case should be regarded as one of exceptional circumstances.

26 It follows that I am not satisfied that the applicant's case can presently be regarded as one involving exceptional circumstances although in my view the circumstances in which he is currently being held confined if coupled with unreasonable and protracted delay might give rise to a situation in which his case could be regarded as one involving exceptional circumstances.

27 Accordingly the application for bail is dismissed.

[1] See DPP v Cozzi [2005] VSC 195 and the cases there discussed_._